Shaikh Gajar vs State of Bihar and Others

Lalit Mohan Sharma, J.—The petitioner and the respondent No. 5 are rival claimants for a piece of land detailed in this writ application. After the vesting of the Zamindari in the State of Bihar under the provisions of the Bihar Land Reforms Act, 1950, the respondent No. 5 made an application before the Anchal Adhikari, the respondent No. 4, u/s 6 of the Act for fixation of rent. The prayer was allowed. When the petitioner learnt about it, he moved the Collector, Motihari, in appeal. The impugned order was set aside and the matter was remanded for fresh consideration by the Anchal Adhikari who once more decided the dispute in favour of the respondents. The petitioner then filed another appeal before the Collector which was ultimately heard by the Additional Collector, respondent No. 3, and was allowed in part. The respondent No. 5 filed an appeal before the Collector against the decision of the Additional Collector which was dismissed as not maintainable. Thereafter, he preferred an appeal before the Commissioner, the respondent No. 2 who has by the impugned order in Annexure 1 set aside the order of the Additional Collector and restored the order of the Anchal Adhikari.

Mr. Khalil has contended that in view of the provisions of Section 8 of the Act, the second appeal before the Commissioner was not maintainable and the order passed by the Additional Collector in exercise of the appellate power was final and not subject to any modification by the Commissioner.

The case of the petitioner is that the disputed land was recorded in the name of his father as Brit Lakheraj and after vesting of the zamindari it must be deemed to have been settled with him u/s 6 of the Act as he was in khas possession. The orders were passed by the Anchal Adhikari after an enquiry u/s 6(2) of the Act. The Section 8 which is in the following terms provided an appeal against the order:

Appeal against Collector''s order under Sections 5, 6 or 7--An appeal against any order of the Collector under Sub-section (2) of Section 5, or Section 6 or Section 7, if preferred within sixty days of such order, shall lie to the prescribed authority not below the rank of an Additional Collector who shall dispose of the appeal according to the prescribed procedure.

The Act does not provide for any further appeal or revision and the Section 35 bars even a suit. The Rule 8 of the Bihar Land Reforms Rules, 1951 made u/s 43 of the Act states that an appeal against an order u/s 6 shall, if the order is passed by an officer below the rank of an Additional Collector, lie to the Additional Collector ; if passed by an Additional Collector, than to the Collector of the district, and is passed by the Collector of a district, to the Commissioner of the division. Both the Section 8 and the Rule 8 deal with one appeal directed against the original order u/s 6. They do not contemplate a second appeal from the appellate order. The Collector, therefore, was right in rejecting the appeal preferred before him against the decision of the Additional Collector (passed in appeal from the decision of the Anchal Adhikari) as not maintainable. For the same reason, it must further be held that the appeal before the Commissioner was also not maintainable.

The proceeding u/s 6 of the Act is Judicial in nature in which rival claims of the litigating parties are determined and unless the law vested in the Commissioner, authority to interfere with the orders passed in the proceeding, the power in this regard cannot be assumed merely for the reason that the Collector is an officer subordinate to the Commissioner. Having regard to the provisions of the Land Reforms Act and the Rules, it must be held that the Commissioner has no jurisdiction either revisional or otherwise to interfere with an order passed in appeal u/s 8 of the Act. In Baldeo Prasad Sah v. Commissioner of Bhagalpur Division 1960 B.L.J.R. 19 it was observed that there is no authority given to the Commissioner either within the framework of the Bihar Land Reforms Act or under the provisions of any of the rules framed under this Act to revise a judgment of the Collector made u/s 6(2) of the Bihar Land Reforms Act. I, therefore, held that the Commissioner had no jurisdiction to interfere with the order of the Additional Collector. Accordingly, Anuexure 1 is quashed and the writ application is allowed, but without costs.

M.P. Varma, J.

I fully agree with all that has been said by my learned brother. It is very clear that unless the law confers powers on the Commissioner, he is not supposed to interfere on the assumption that the order in dispute was decided by an authority subordinate to him administratively. It was a judicial proceeding and the Anchal Adhikari excercised his jurisdiction u/s 6 of the Bihar Land Reforms Act (hereinafter referred to as ''the Act'') against which there is provision of appeal, as laid down u/s 8 of the Act. It has, therefore, been rightly held that in judicial proceeding under the provisions of the Act, Commissioner has no authority to sit in a second appeal, made before him by the party. Appeal lies to the Commissioner of the Division only in case if the order is passed by the Collector of the district under the said Division and not otherwise. The application has therefore, been rightly allowed.